Council Winks at Boy Scout Gay Ban

San Diego  The Desert Pacific Council of the Boy Scouts of America forced the city's hand in November when it asked for a 50-year extension of its lease on 16 acres of land in Balboa Park, where the council is based. Currently, that lease expires in 2007. The scouts also have a lease on city land on Fiesta Island that expires in 2012.

Despite growing opposition to the Boy Scouts' discriminatory policies against gays and atheists, and despite a suit pending in federal court that seeks to force the city to terminate its lease agreements with the scouts, the San Diego City Council appears poised to approve the lease extension sometime in January.

The suit, filed on August 28 by the San Diego American Civil Liberties Union and the Tom Homann Law Association, contends that by leasing city park land to an organization that discriminates, the city council is in violation of its own policies. Both sides agree, however, that a decision in the case is far off. The ACLU and M.E. Stephens -- a partner in the firm of Lynn, Stock, and Stephens, a volunteer litigator in the suit -- think the city council should postpone a decision on the lease extension until the court rules.

But from my interviews with city and scout officials, it's clear that the new council will not wait. After hearing arguments for and against the extension on November 14, the city council went into closed session the next day to discuss the matter. According to Stephens and the ACLU, the circumstances of that closed session were suspect. They are referring to the fact that on the day of the session then-Councilwoman Christine Kehoe -- who would have either opposed a lease extension or demanded provisions on a new lease -- was required to be in Sacramento. Regardless, in the closed session councilmembers gave city officials directions to work on a new lease with the Boy Scouts.

Will Griffith, the city's real estates assets director, says, "I can certainly say that we received no direction to terminate their existing lease and that we did receive direction to negotiate a new lease. The city council gave me very specific direction, and I took that to the scouts, and we're finalizing that so that it can be presented to the council in open session. I don't anticipate it going back to committee or anything. I will probably be in a position to make a request for council action and provide all the necessary documentation in January."

Ted Cox, scout executive and CEO of the Desert Pacific Council, corroborates Griffith's statement. The only reason negotiations aren't concluded, he says, is because of vacations and the swearing in of the new mayor and councilmembers. "A draft of a standard lease for this kind of property was even given to us before the closed session, and 98 percent of it was fine with us. We're optimistic that the city council will want to have the Boy Scouts continue to manage that property," he says.

Les Girard, an assistant city attorney who has advised the city council on legal matters pertaining to the scout leases, says that he has told them that policy number 700-04 -- which was drafted in 1981 and states that the city can rent land in Balboa Park only to "those organizations whose memberships are open to the public and who do not discriminate in any manner against any person on account of...sex [or] religious creed" -- is irrelevant. "It is only a policy," he says, "which is not legally binding like a municipal code." In the arcane syntax of his profession, Girard says, "The council may choose as a matter of policy not to apply a council policy to an open lease. Policies are not binding law."

"So they wrote that policy for what?" Stephens asks. "For nothing? Absurd. What is the point other than political expedience to say we have a nondiscrimination policy when in reality it's not true. So you just snow the people?"

Mayor Dick Murphy, for one, will vote for the new lease when it comes before council again. When reminded that the San Diego ACLU, local citizens, and national philanthropic organizations oppose the city's current subsidies of the scouts, John Kern, the mayor's chief of staff, responded, "I can't speak for the city council, but it's certainly the position of the mayor that he supports the scouts. The mayor has said repeatedly that he is for the Boy Scouts staying in Balboa Park, that he believes they perform a great public service, and supports their staying there."

During the mayoral race, both Dick Murphy and Ron Roberts defended the scouts. On KNSD-TV's Headliners talk show in early September, Murphy said he would "do everything to protect the Boy Scouts' right" to lease city land. Councilman Byron Wear says he will vote in favor of the lease extension and is confident that it will be approved by the city council. "I think there's going to be some disagreement," Wear says. "Obviously there will be a little dissension. But my position is that we can't have the members of our youth community drawn through a long battle. The Supreme Court has ruled on this. I think it is permissible to continue our lease, and I would be very much in support of the extension of the lease for another 50 years. The city attorney has addressed the issue. I think most of this city council is very comfortable in moving forward with the lease for the scouts. I haven't counted votes or anything, but there is a comfort level."

When asked about the Boy Scouts' discriminatory polices, Wear responds, "I think that entire debate needs to go on within the scouts themselves. That's the appropriate place for that discussion. They need to decide what kind of organization they're going to be."

Along with Mayor Murphy and Councilman Wear, an anonymous source tells me that councilmembers Jim Madaffer, Brian Maienschein, and George Stevens will likely vote to approve the lease extension. That amounts to a majority.